A man, under the age of 23, had intercourse with a 15 year-old girl. He was charged with offences against section 5(1) of the 1885 Act and section 52 of the 1861 Act, relating to the same act of intercourse. He pleaded not guilty to the first (more serious) offence but guilty to the second and was bound over. It was found as a fact that he had had reasonable cause to believe that the girl was over 16 and the charge under section 5 was not proceeded with.
Held: On appeal, it was argued that, to avoid absurdity, the statutory defence should be available in relation to the indecent assault charge as well as the carnal knowledge charge, where the indecent assault was the act of carnal knowledge. Counsel for the crown did not contend that the result of the statute was not absurd but said the law was clear. The Court of Criminal Appeal upheld the conviction. Avory J ‘The words of a statute cannot be construed, contrary to their meaning, as embracing cases merely because no good reason appears why those cases should be excluded. It is not the duty of the Court to make the law reasonable, but to expound it as it stands, according to the real sense of the words. Applying that principle, we can find no justification for reading the proviso to s.2 of the Act, which in terms is limited to charges of offences under that section, as applicable to a charge of indecent assault, which is separately dealt with in s.1. It is only by a benevolent construction that any effect can be given to this proviso, seeing that no offence is created by s.2, but if it be assumed to apply to charges under ss.5 or 6 of the Criminal Law Amendment Act, 1885, which are referred to in the earlier part of the section, there is no canon of construction which would justify the Court in applying it to s.1, bearing in mind the various forms of indecent assault which do not amount to carnal knowledge.’ It was no defence on charges of sexual assault that the defendant believed the girl or boy to be under 16 and to be consenting.
Judges:
Avory J
Citations:
(1923) 17 Cr App R 99, [1923] 2 KB 400
Jurisdiction:
England and Wales
Cited by:
Binding – Rex v Maughan CCA 1934
The defendant was aged 22 and the child between 13 and 16. There were six counts, three of carnal knowledge, three of indecent assault, arising from the same facts. He was acquitted on the carnal knowledge counts, plainly because he made good the . .
Cited – B (A Minor) v Director of Public Prosecutions HL 23-Feb-2000
Prosecution to prove absence of genuine belief
To convict a defendant under the 1960 Act, the prosecution had the burden of proving the absence of a genuine belief in the defendant’s mind that the victim was 14 or over. The Act itself said nothing about any mental element, so the assumption must . .
Cited – Regina v K HL 25-Jul-2001
In a prosecution for an offence of indecent assault on a girl under 16 under the section, it was necessary for the prosecution to prove the absence of a positive belief in the defendant’s mind that the victim was 16 or over. The legislation history . .
Cited – White v Regina CACD 15-Apr-2014
The defendant sought an extension of time for leave to appeal against his conviction for fraud. After his conviction there had been academic debate as to its basis, and the present application was not opposed. He had originally been charged under . .
Lists of cited by and citing cases may be incomplete.
Crime
Updated: 25 November 2022; Ref: scu.195982